Texans For Texas - The First Amendment

The First Amendment Sure Isn't What It Used to Be

November 3, 2005

T4T Editorial Comments:

The first amendment sure isn't what it used to be. Recently, in the Clayton v. Ceverha election code case, a local district judge has chosen a construction of the Texas election code which gives less protection to Texas citizens engaged in core first amendment activity, than the United States Supreme Court's chosen construction of the federal child obscenity act has given to peddlers of child pornography. See: United States v. X-Citement Video, Inc., 513 U.S. 64 (1994).

A Federal district judge has also interpreted the First Amendment to mean that a city library must place books with adult themes in the juvenile section of the library. Sund v. City of Wichita, 121 F.Supp 2d 530 (USDC N.D. 2000). Imagine citizens in that city want to change that library policy by changing the folks at City Hall. They join together, pool their resources, and get involved. But they are supporting candidates running against incumbents. Those incumbents have high name identification. They have the power of patronage and the public purse behind them. The band challenging City Hall are able to convince some businessmen in the town to support the cause. Some money is even contributed by corporations and is spent to pay for polls. Now, according to the rulings of these judges, such actions would have violated the Texas Election Code. These judges need to reconsider the history of the first amendment.

History of First Amendment

The history of "seditious libel" is the background from which the First Amendment grew. The Founders were aware of the Peter Zenger suit which was a suit for seditious libel by the Royal Governor Cosby against Mr. Zenger for writing articles critical of the governor's policies. The theory of seditious libel was that the king was the originator of justice and is above criticism. John Nowak, Constitutional Law p. 1057. Publications of statements critical of the sovereign or the government were considered illegal. Id.

The United States Constitution was approved in 1788. Subsequently, the Alien and Sedition Acts were passed in 1798. The Alien and Sedition Acts were never challenged in the United States courts. But history shows they were probably not constitutional. President Jefferson after his election pardoned those who had been convicted under the Sedition Act.

This history helps provide a better understanding of the First Amendment. It was meant to protect those who might criticize the government or organize to change it from government retaliation.

Because of the critical importance of this freedom, it has routinely been considered a right of high importance and laws that restrict it have traditionally been carefully reviewed to insure that freedom was not unnecessarily infringed upon. This is a type of review our robed masters call "strict scrutiny".

The courts have created two concepts for evaluating whether laws regulating First Amendment activity are constitutional. One, is the doctrine of over breadth. That is when a statute is written too broadly and is designed to burden or punish activities which are not constitutionally protected but the drafting is so broad that it would include activities protected by the First Amendment. See NAACP v. Button, 371 U.S. 415 (1963).

The other ground courts have used for invalidating a statute restricting core First Amendment activity is the vagueness doctrine. The idea is that a statute or law must provide fair notice to persons before making activity criminal. This should be especially important when considering this freedom as it relates to a constitutional "fundamental right". If it does not provide this notice, it is not constitutional.

In the case of In Re: Primus, 436 U.S. 412 (1978) the Supreme Court invalidated a state statute against attorney solicitation and allowed an attorney to solicit for ACLU representation of a client because the ACLU is not a for-profit law firm. In contrast, in Ohralik v. Ohio State Bar, 436 U.S. 447 (1978), found a state statute preventing direct solicitation of clients by "private" attorneys to be constitutional.

Another area where the U.S. Supreme Court has discussed the First Amendment concerns state laws or regulations preventing the amount a professional fundraiser can charge the charity in order to solicit funds. In Secretary of State v. Joseph H. Munson, Inc., 467 U.S. 947 (1984), the United States Supreme court determined that a state cannot impose a 25 percent limit on fundraising expenses for professional fundraisers hired by charities. In other words, if a charity hires a professional for-profit company to raise money for them, the state cannot tell the professional fundraiser's cut is limited to 25 percent. The opinion refers to fundraising as a "promotional activity" in which you can educate about the charity in addition to raising money. The government interest in these statutes is to protect the public from fraudulent solicitations by non-charitable organizations. See also Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980). Curiously, under the interpretation of certain courts, such fundraisers have more First Amendment protection from government regulation than those raising funds for political activity.

In Brown v. Hartlage, 456 U.S. 45 (1982), an election challenger promised that if elected, he would serve at less than the statutory salary. He was prosecuted for bribery. The United States Supreme Court said that using the bribery statute for such an action was unconstitutional.

Campaign Corruption

The stated legislative objective for regulation of campaign finance contribution and expenditure is to eliminate corruption, eliminate the appearance of corruption, and to insure that public participation will not be dampened. Thus, conduct might be subject to regulation if it is necessary to further an important government interest and is narrowly tailored to further the interest of eliminating corruption. For example, "remedial laws," like those that regulate lobbying, campaign contributions, and union elections may be subject to some restriction. Broadrick v. Oklahoma, 413 U.S. 606 (1973).

There is a very well financed and organized political lobby which constantly works to expand those regulations. Sometimes, they do this by lobbying legislatures to change laws. At other times, litigation is used to expand the scope of regulation. For example, in the case of the Texans for Republican Majority, (TRMPAC) the Austin American Statesman has reported no settlement of the cases against "TRMPAC" is possible unless the Texas Election Code is rewritten. The central tenet of the campaign reformer's agenda is that campaign contributions are somehow corrupting of either individuals or the process.   See: "The Concepts of Corruption in Campaign Finance Law" by Thomas F. Burke Constitutional Commentary Spring of 1997.

In his article, Professor Burke reviews the three different theories of corruption, which the federal courts have considered.   First, is the quid pro quo theory, which in essence would be a bribe. Second, is corruption because of monetary influence. The third is distortion. In Buckley v. Valejo, the Supreme Court struck down limitations on campaign expenditures but upheld contribution limits. The court discusses the idea of a quid pro quo when discussing the problems of corruption but then goes farther stating that the state's interest goes beyond mere bribery. It seems the court is hinting at a monetary influence standard.

In FEC v. National Right to Work Foundation, 459 US 197 (1982) the Court, wrote "Preventing corruption or the appearance of corruption are the only legitimate and compelling government interest thus far identified for restricting campaign finances".

In First National Bank of Boston v. Bellotti, 435 U.S. 765, 794 (1978) the court struck down a law forbidding corporations and banks from spending money in referenda campaigns. The court determined there was a very small risk of corruption in that setting because in referenda elections, there is no candidate to corrupt. This opinion would seem to follow a quid pro quo theory of corruption.

Next, in FEC v. National Conservative Political Action Committee, 470 U.S. 480 (1985) Justice Rehnquist offers this definition of corruption:

"Corruption is a subversion of the political process. Elected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns. The hallmark of corruption is the financial quid pro quo: dollars for political favors." Id.

This seems to be a wider standard of corruption. Rehnquist goes on to say that elected officials violate their public trust when they are influenced by the prospect of financial gain to themselves or infusions of money into their campaigns. He calls quid pro quo vote trading merely the hallmark of political corruption. However, Rehnquist goes on to emphasize that an absence of prearrangement and coordination clearly undermines the value of the expenditure thereby alleviating the danger that expenditure will be given as a quid pro quo for improper commitments from the candidate. Thus, at the end of the day, the NCPAC case seems to be continuing with a more narrow quid pro quo standard than some of the language in the opinion suggests.

In FEC v. Massachusetts Citizens for Life, Inc., Justice Brennan for a majority of the court found that a state law restricting independent expenditures for candidate elections was overbroad as applied to the appellee, a non-profit corporation. In his analysis, Brennan indicated that ideological advocacy groups such as Massachusetts Citizens for Life, Inc., should be distinguished from "profit-seeking corporations" who pose a real danger of "distorting the political process through their aggregation of wealth." In other words, non-profit corporations do not pose the same danger of corruption as for profit non-ideological corporations. Here, Brennan begins to broaden the notion of "corruption" in the context of elections.

Next, in Austin v. Michigan Chamber of Commerce, Justice Marshall's opinion defines a new concept of corruption borrowing from Brennan's opinion in the Massachusetts Citizens for Life case.   Corruption according to Marshall:

"Regardless of whether [the] danger 'financial quid pro quo' corruption…may be sufficient to justify a restriction on independent expenditures, Michigan's regulation aims at a different type of corruption in the political arena: the corrosive and distorting of facts of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas". (emphasis added)

In other words, corruption is no longer tied to the conduct of the office holder, instead the focus has moved and concerns the power of the corporate spender in the political market place.

Justice Scalia attacked this new corruption model in a dissent worth consideration.   In part of his dissent Scalia wrote about First Amendment rights of corporations thus:

"Those individuals who form that type of voluntary association known as a corporation are, to be sure, given special advantages… But so are other associations and individuals given all sorts of special advantages that the state need not confer…It is rudimentary that the state cannot exact as the price of those special advantages the forfeiture of First Amendment rights." Id. at 680

Then specifically discussing the new genus of political corruption, Scalia explains "under this mode of analysis, virtually anything the Court deems politically undesirable can be turned into political corruption by simply describing its effects as politically corrosive". Id.

The article "Do Campaign Donations Alter How a Politician Votes? Or, Do Donors Support Candidates Who Value the Same Things As They Do?" from the Journal of Law & Economics, October, 1997, by Stephen G. Bronars and John Lott, considered the question of whether contributions change politicians votes. Their report determined they do not. Rather, their findings qualify that supporters give money to those who vote as they would want.

Do political participation, association and spending have less constitutional protection than other rights?

The Election reformers have convinced courts that "clean" elections are more important than non-regulated elections. In his criticism of election reform, UNFREE SPEECH Professor Brad Smith addresses this conflict: "Supporters of extensive campaign finance regulation, …tend to reject the actual text of the First Amendment and instead focus on what they discern as the purpose of the amendment: to foster enlightened democratic self-government". However, properly understood the First Amendment's very language, which states that government "shall not" act, makes clear that vibrant public discussion was to be achieved by protecting individual liberty interest against government interference, not through an activist government role in political debate. Once it has been decided the government/state may silence certain speakers to ensure that others are heard, it is a short step to suppression of other opinions.

Professor Smith explains further, "The expenditure of money is inextricably linked to free speech. The contribution of money to a political candidate is a speech act".

He then illustrates the stakes by offering examples of the regulator's impact analogizing to other rights. For example, the Supreme Court has recognized a right to interstate travel. This right is widely accepted and utilized by the public. Imagine in an effort to reduce the costs of road and airport maintenance and engine pollutants, suppose the government banned all corporate travel and limited the amount that individuals could spend on interstate travel to $1,000.00 per trip or $25,000.00 per year. The ban would be extended to all expenses involved in travel, including fuel, equipment purchase and maintenance, automotive and travel accident insurance, lodging, meals, and entertainment and so forth. This would assuredly infringe on the right to travel. Isn't this essentially what campaign finance laws do when they ban corporate contributions? When they limit individual contributions?

Or, consider the first amendment protection of the Freedom of Religion.   In an effort to conserve building resources in urban space suppose the government capped what could be spent on the construction and maintenance of church buildings. On the other hand, suppose the state limited the amount that a publishing house could spend to publish a book or newspapers could spend to publish its paper or that t.v. stations would be allowed to spend to be on the air. Wouldn't each clearly violate the First Amendment by constricting the overall flow of information? Wouldn't the first restrict the right to free exercise of religion?

Yet, the reformers impact the First Amendment guarantee in much the same way.

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