Update: Originally, we failed to provide the pdf link to the brief. It’s now embedded.
You helped fund it, and we…
Filed the new campaign finance brief with the Supreme Court last Friday.
Bill Olson and Herb Titus did their usual masterful job. They managed to repeat our unique “freedom of the PRESS” argument against the campaign finance laws, while also making powerful new arguments. Here are some highlights …
From page 6…
” … no court can justify any law that discriminates on the basis of the speaker's identity, no matter how strong the government's countervailing interest — compelling, important, or otherwise.”
From page 15…
“Not only are the FEC's powers analogous to the powers of the 17th century English Star Chamber, but they also parallel that horrid institution's practice of policing 'the conduct of municipal elections.'”
From page 16…
“… it was the Star Chamber that administered the licensing of printing, whereby the Government exercised censorship over publications …”
“Indeed, the freedom of the press, a freedom recognized and reaffirmed in Citizens United, originally embraced the absolute right to publish . . . without any prior restraint…”
From pages 16 & 17…
“Nor is there any support in the First Amendment for the proposition that the government may override the freedom of speech in order to protect the government’s reputation.”
From pages 17 and 18…
“Moreover, the oft-claimed government interest in protecting government officials from the 'appearance of corruption' is, in reality, an effort by incumbent legislators to portray themselves as free from improper influence.”
From page 18…
“The Citizens United opinion has opened the door to a reexamination of the 'corruption or appearance of corruption' rationale undergirding campaign finance reform legislation…“
“…it is our law and our tradition that more speech, not less, is the governing rule.”
From page 20…
“… the judiciary must be careful not to adopt rules of interpretation that stray from the constitutional text, and thus substitute its own will for that of the people… Yet, that is precisely what this Court has done with its interest-balancing standards of review in First Amendment speech and press cases.”
From pages 21 and 22…
“In the infamous Japanese-American internment case, Korematsu v. United States . . . the Court, applying 'the most rigid scrutiny,' concluded that a 'pressing public necessity' of World War II overrode the due process guarantee of the Fifth Amendment. After Korematsu, the Court extended its balancing test to other 'race' cases…”
From page 23…
“By the beginning of the 21th century, this Court's constitutional jurisprudence was steeped in balancing formulas, sociological studies and economic models, and other non-constitutional sources.”
And here is where Perry Willis's “amendment argument” appears on pages 24 and 25…
“…it is not for Congress or the courts to make exceptions based upon countervailing government interests, compelling, substantial, or otherwise.”
“…if a governmental interest is so compelling then those who support it are required by Article V of the U.S. Constitution to follow an amendment process by which such interests are established by the will of the people — by a two-thirds vote in both houses of Congress and ratification by three-fourths of the state legislatures.”
“If this super-majoritarian process may be bypassed by the judicial fiat of five justices of the United States Supreme Court, then the 'written constitution [is] absurd…'”
And the brief concludes…
“The flawed notion that the government might, by demonstrating an important, or even a compelling, governmental interest, override the will of the people enshrined in a written constitution, is reason enough to repudiate the balancing tests that have undermined the freedoms of speech and of the press for too long.”
– END –
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Thanks to everyone who contributed to make this brief possible,
Jim Babka
President
Downsize DC Foundation