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Is the Speech Straightjacket Constitutional?

September 12, 2018

by Adi Dynar
September 12, 2018

You are a minor political party. It is important for you to get your message out, by knocking on people’s doors, talking about important issues, educating voters about everything you stand for—be it respect for individual rights or collectivism. In a will, a donor leaves you a large sum of money to use as you think best.

But Congress tells you that you can use only 10 percent of that money on speech that matters most to you—grassroots outreach. The other 90 percent you can only use for things that don’t really matter to you at all—specifically, on presidential nominating conventions, party headquarters buildings, and vote recounts. Since you’re a small party, you don’t usually hold conventions, don’t need a headquarters building, and rarely seek recounts. Nevertheless, the rule applies: If you don’t use it on one of those three things, 90 percent of the money left to you in your wealthy donor’s will is unusable. Does that violate the First Amendment free speech clause?

That’s the question currently pending before the D.C. Circuit in Libertarian National Committee, Inc. v. Federal Election Commission.

The Goldwater Institute has filed an amicus brief arguing that this law is a content-based restriction on speech because it stifles or endorses speech based on its content. The trial court ruled that nominating conventions, headquarters buildings, and vote recounts are expressive in nature and therefore covered by the First Amendment. But if that’s so, the rule means that the Republican and Democratic Parties—which need to spend money on these things—have more flexibility than small parties that don’t have much use for those kinds of expression. And because the restriction dictates how parties can express themselves, and on what, the law is triggered by certain types of speech, meaning it violates the First Amendment. We’re hopeful the court will see through the many complicated and obsolete campaign-finance precedents and will base its decision on the more recent and more straightforward decision in Reed v. Town of Gilbert.

The question of remedies, however, is the more important question for the court to tackle, because of the way the statute is written. A lot hinges on which portion of the statute is declared unconstitutional. If the contribution portion is deleted, it would have the effect of completely banning speech. That is because, with such a strikethrough, there would be no statute under which political parties could raise and spend money. If the 90 percent language is stricken, it would result in drastically reducing speech by disallowing large amounts of spending by political parties.

In our amicus brief, we argue that only the specific-purpose component should be declared unconstitutional. Such a declaration would enable contributors and parties to speak on topics that matter most to them, and it would also leave parties free to spend money on nominating conventions, headquarters, and recounts, as and if needed.

This choice-of-remedies question has vexed the Supreme Court recently—in campaign finance and immigration cases. Faced with such a question, “the governing rule,” the Court has said, is to fashion a remedy that leads to a greater protection of individual rights. We urge the D.C. Circuit to follow that rule: The remedy should be one that leads to “more speech, not less.”

The government micromanaging the quantity and content of speech goes against every fiber of America’s founding charter. This content-based straightjacket should be discarded as a modest step in taking a hard look at the distorting effects of bad campaign finance laws.

Adi Dynar is a staff attorney at the Goldwater Institute.



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