Stomping Out Rubber Stamp Limits to Free Speech in Campaigns

September 23, 2019
By Timothy Sandefur

Freedom of speech includes the right to donate money to political causes and candidates one agrees with. It also includes the right of a political group to receive that money. For a long time, of course, the Supreme Court has said that the government can pass regulations that limit the amount of money that these groups can receive, in the name of preventing corruption. But even then, the regulations must be “carefully drawn” to actually achieve that goal; it’s not carte blanche for the government to restrict donations however it pleases. After all, elected officials are often eager to limit the political process—including donations—in ways that secure them against challenges in future elections.

But courts often fail to give effect to these rules, and uphold restrictions on campaign contributions when there’s no realistic connection between them and any actual anti-corruption rationale. The result is a profusion of complicated and burdensome regulations that end up protecting incumbents and limiting the possibility of future political change—all of which is deeply anti-democratic as well as contrary to constitutional rights.

That’s what the Goldwater Institute argues in a brief we filed today in the U.S. Supreme Court in a lawsuit challenging restrictions on how much money a political party can receive in a will. The donor of this money, of course, is deceased—so the likelihood that his donation was meant as a quid pro quo is pretty small. And the restriction says parties can only spent 10 percent of the contribution on speech, and then must spend 30 percent on a presidential nominating convention and another 30 percent on lawsuits related to elections, and another 30 percent on (believe it or not) a party headquarters building—this restriction obviously benefits large political parties at the expense of third parties.

But rather than weigh these issues in depth, lower courts simply upheld the restriction, without even requiring the government to shoulder the burden of proof to demonstrate that it actually serves the anti-corruption rationale that the government advanced to justify the rule. That’s wrong. The Supreme Court has made clear that the government has the burden of proof, and it’s a serious one. Yet as we point out in our friend of the court brief, courts in case after case have disregarded these requirements and have upheld restrictions on campaign funding by simply asserting, without proof, that they serve some legitimate goal. This sort of rubber-stamp approach can too easily result in limits on free speech that benefit incumbents and curtail critical constitutional rights.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.