Free Speech & Election Law
Executive Committee Contact Information
Subcommittees
- Advertising Law & Regulatory
- Election Law
- Free Speech & Harassment Codes
- Media Law
Projects
Upcoming Events
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2009 National Lawyers Convention |
Recent Publications
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Elections; Universal Voter Registration; Same Day Voter Registration |
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Fairness Doctrine |
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SpeechNow.org and the Paradox of Buckley v. Valeo |
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The right to free speech, including the right to speak out about who should be elected to public office, is a fundamental American right, essential to democratic debate. So, too, is the right of individuals to band together and pool their resources to make their advocacy more eff ective. Th e Founders recognized this, and enshrined the rights to both free speech and association in the First Amendment. But ever since the Supreme Court’s seminal campaign-finance decision in Buckley v. Valeo, speakers have been forced to choose between these rights. Specifi cally, while an individual acting alone may spend unlimited amounts of their own money on ads that call for the defeat or election of federal candidates, groups of individuals may pool no more than $5,000 per person to run identical ads. You can speak freely, or you can associate freely, but you cannot do both. Th is paradox, an unintended result of the Supreme Court’s fi rst major campaign-fi nance ruling, has gone unconsidered for more than 30 years. But that is about to change, thanks to a legal challenge by a new citizens group, SpeechNow.org, which is on a fast track to the en banc D.C. Circuit.... |
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Davis v. FEC and the Constitutionality of “Clean Elections” Systems |
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In a “clean elections” system, taxpayer funded candidates must agree to limit their campaign spending. Imposing limits on campaign spending for candidates who forego taxpayer dollars and instead run traditional campaigns would be unconstitutional. Most clean elections schemes thus rely on “matching,” “rescue,” or “trigger” funds to level the playing fi eld between publicly funded and traditional candidates and to discourage traditional candidates from exceeding the spending limits imposed on the taxpayer funded candidate. When a traditional candidate raises or spends more money than the taxpayer fi nanced candidate’s initial subsidy, the government gives additional money to the taxpayer fi nanced candidate to counteract the amount the privately fi nanced candidate collects or spends. In other words, once a privately financed candidate raises or spends above the “trigger” amount, her exercise of her First Amendment rights results in a direct government subsidy to her opponent. For almost a decade, federal courts have largely upheld such systems against First Amendment challenges. The U.S. Supreme Court’s decision in Davis v. FEC undermines the reasoning of these decisions and likely spells the end of this new wave of regulating political speech.... |
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