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June 24, 2016

Incumbent politicians tend to HATE the First Amendment

Is free expression a right or a privilege granted by politicians? Retweet

We’re partnering with the Downsize DC Foundation (and others) to file a brief in the case Independence Institute v Federal Election Commission. This message will…

  • Explain the relationship of this case to previous campaign finance cases
  • Describe our history in this area
  • Share the arguments we want to make in our brief

When you’re done reading this piece, you’ll also know more about the much-maligned Citizens United case than virtually everybody, especially members of the media and politicians.

If you have to ask permission, do you still have a right? No, what you have instead is a privilege. But…

The First Amendment says, “Congress shall make no law…” This clause covers…

  • conscience (worship)
  • expression (speech)
  • publication (press)
  • organizing (association)

Let’s break that down…

People create organizations to express their conscience. They publish their views, in an attempt to persuade others. What can be more American than that?

Clearly you and I have these rights. But incumbent politicians disagree. They believe you lose these rights once you discuss their record in office.

Wait, WHAT? How does that fit with “Congress shall make no law?” It doesn’t. But it does fit with the desire for incumbents to protect themselves against challengers.

Decades ago, Congress recognized that challengers needed money to compete with them at the polls. Some forms of expression and ALL forms of publication cost money. So…

The incumbents created a regime to burden their competition so much that they’d cruise to re-election. The centerpiece of this incumbent protection scheme is the Federal Election Commission (FEC). The FEC enforces restrictions on how political associations raise funds.

The Supreme Court, populated by members of the same ruling class, backed this anti-First Amendment power-play. This buoyed officeholders like John McCain. So they reached further.

McCain and his pals set out to expand the FEC regime. This time, they passed a law restricting the mere mention of their names in a broadcast ad! It’s part of McCain-Feingold.

The law created a new “crime” called Electioneering Communications. Mentioning the name of an incumbent, in a broadcast ad — during the month approaching a primary or two months approaching a general election — was illegal unless you registered and obeyed restrictions set by the FEC. The Supreme Court affirmed this so-called law.

  • Most of the groups affected by McCain-Feingold are policy watchdogs and issue educators. It’s their job to report to their members and others (who have busy lives doing other things) what officeholders are doing. We’ll have more to say about this, below.
  • Still other groups focus on transparency or accountability of public figures. Unfortunately, all-too-often, the media fails on these fronts. The people need organizations that do this reporting.

One such accountability group made a documentary called, “Hillary: The Movie.” Hillary Clinton was running for President against then-Senator Barack Obama. And there were primaries almost weekly. So there was no window to show the movie on DirecTV. Advertising it was even illegal.

The producers went to court. This case became known by the name of the group that filed it…

Citizens United.

Citizens United (CU) was REALLY about the right of non-profit groups, which are really just citizens associating together, to publish information. Such groups educate the public.

The CU decision is as American as James Madison, the Father of the Constitution, who suggested that this kind of activity is necessary to a healthy republic.

But you wouldn’t know that to hear the distortions and outright lies federal officeholders, including the President, have told about it.

We filed crucial amicus briefs in the CU case. We made unique arguments based on the freedom of the press.

The Supreme Court ruled in our favor! The majority opinion referenced our freedom of the press argument. And we’re very proud of that. We also influenced the McCutcheon v FEC decision that came a couple years later.

These rulings changed the game by giving non-establishment opinions a louder voice. Under the old rules, Jeb Bush should’ve swept the primaries!

We’ve been at this for years, filing briefs. We even challenged McCain-Feingold as plaintiffs and our challenge reached the U.S. Supreme Court.

Now, there’s more work to do. It’s on the question of Electioneering Communications — this phony, anti-Constitutional crime.

Independence Institute is a non-profit, educational organization. They want to run an informational, issue-based radio ad in Colorado. Their ad mentions the name of and the voting record of a Senator. But it neither advocates his election or defeat. It just asks the public to let the incumbents know what the people think. Yet once again, the FEC is there to protect the incumbent by prohibiting the mere mention of his name.

The Electioneering Communications statute violates our freedom of the press. Contribution limits combined with the requirement to report donor names on a public list, “chills” the dissemination of information.

This provision also violates another important right that doesn’t get enough attention — the right to speak or publish anonymously.

This anonymity argument has been a winner in the past! We have two favorable U.S. Supreme Court precedents: McIntyre v. Ohio Elections Commission (1995) and Talley v. California (1960). And…

If we don’t file a brief, we already know these anonymity arguments won’t be made.

We want to file a brief in the case Independence Institute v Federal Election Commission.

But we need your help to do it. This will be the seventh amicus brief we’ve filed this year — and it’s only June! We’ve already had a victory to report!

Can you make a contribution to the Downsize DC Foundation to fund this legal work? (Note: We use the secure, online form of the Zero Aggression Project so that contributions can be tax-deductible for those who itemize.)

In order for us to succeed, we’ll likely need…

  • At least one patron who gives $2,000 or even $1,000, OR
  • One to three donors who contribute at least $500, OR
  • 50 or so contributions of varying size — every bit counts!

Please, help us make this brief possible.

  • Your contribution to our partner, the Downsize DC Foundation, is tax-deductible.
  • We accept corporate and personal contributions.
  • As you’ll see on the Zero Aggression contribution form, we take Visa, Mastercard, Discover, American Express, Bitcoin, PayPal, checks, and appreciated securities.

Thanks for your consideration and support,

Jim Babka, President, Inc.

P.S. Think about it this way… The Electioneering Communication statute basically gives Senators and Congressman a form of trademark over the use of their own name. You can’t criticize them, unless you run through expensive channels they’ve designed. Does that square with the First Amendment?

You might also be interested to know that… The FEC demands that nonprofit organizations which run these ads must report the names of their bigger donors. At present, that reporting is limited to those who contributed to fund the broadcast of ads. But there’s another case we’re still fighting, Van Hollen v FEC. There the question is, should nonprofits that conduct Electioneering Communications be required to identify ALL their larger donors — even if the money was given for other purposes? We’ve filed two briefs in that case so far!

We need to stay in this game and keep building precedent for the arguments that are restoring our liberties. Our briefs offer a unique perspective. We really need your help to produce this. And if you give through the Downsize DC Foundation (on the Zero Aggression Project contribution form), your contribution can be tax-deductible.

If your comment is off-topic for this post, please email us at


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