December 16, 2019
By Jacob Huebert
Good news for free speech rights in Tennessee: The Tennessee Court of Appeals has struck down a state law that banned political action committees (PACs) from giving money to candidates in the ten days before an election—but allowed political parties to give money as usual, right through Election Day. The Goldwater Institute urged the court to strike the law in an amicus brief it filed in the case.
It should be obvious why the law was wrong: The First Amendment is supposed to protect the equal right of every person and every group to speak and to try to influence the outcomes of elections. Government officials shouldn’t be allowed to use the law to play favorites, especially in the political arena.
Supreme Court precedent requires courts to strike down any restriction on campaign contributions for violating the First Amendment unless the government shows, with evidence, that the restriction is narrowly tailored—that is, carefully designed—to prevent corruption. The Tennessee court held the state to its burden and found that the state hadn’t met it—first and foremost, because the state didn’t present any evidence to justify its rule.
Too often, governments assume that they can justify campaign finance laws, even those that treat some political donors more favorably than others, by simply asserting, without evidence, that any restriction on contributions will tend to prevent corruption. And sometimes courts let them get away with it. But the Tennessee Court of Appeals rightly said that’s not good enough.
The court also explained why Tennessee’s discriminatory rule was obviously not narrowly tailored to prevent corruption. The state said it needed to ban PAC contributions in the ten days before an election because otherwise contributions during that time period might not be disclosed before Election Day. But the court pointed out that if the government is concerned about disclosure before the election, it could require PACs to report contributions online for immediate public disclosure during that time period. The court also said that concerns about disclosure couldn’t justify a blanket ban on all PAC contributions before an election when the law doesn’t even require contributions of $100 or less to be disclosed in any event.
The court also raised a point that the Goldwater Institute emphasized in its brief: It’s especially harmful to ban political contributions—and the speech that they fund—in the days just before an election, when the public is paying the most attention. That not only suppresses important political speech; it also serves to protect incumbent officeholders, who typically raise most of their money early in an election season, from competition.
The Tennessee court’s decision provides an outstanding of example of how courts should scrutinize campaign-finance rules: The presumption should always be against any restriction on speech, and when the government doesn’t provide evidence to justify a restriction, a court should not hesitate to strike it down.
Jacob Huebert is a Senior Attorney at the Goldwater Institute.