Introduction

Freedom of speech and freedom of association are so important that they are enshrined in the First Amendment to the U.S. Constitution. Yet across the nation, in nearly every state, government regulation stifles the ability of citizens to exercise their rights to speak and to associate with one another and discuss the most pressing issues of the day. The culprit? So-called “campaign finance” laws.

Last year, in Citizens United v. FEC, the U.S. Supreme Court issued a stirring indictment of campaign finance laws that burden and restrict speech. “If the First Amendment has any force, it prohibits [government] from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”[1] Recognizing the rights to speak and associate as fundamental to a free society, the Court struck down a law that banned corporations from spending money on speech. Along with the direct ban went a law that required corporations to establish separate, heavily regulated political committees in order to speak.

Citizens United ignited a controversy over concerns about corporation “influence” in government, but few realize that the same sort of laws that applied to corporations in Citizens United apply in many states to small groups of citizens who simply wish to speak out about political candidates and ballot issues near an election. In 24 states, citizens who wish to spend money to speak out about ballot issues must formally organize themselves into committees, register with the state and navigate a complex maze of regulations and disclosure laws.

These regulations violate the First Amendment. In this nation, no one should have to get the government’s permission and jump through legal hoops before they speak. The only thing you should need to speak is an opinion. But thanks to burdensome campaign finance laws, concerned citizens need more than just their opinions, they also need a lawyer.

In this nation, no one should have to get the government’s permission and jump through legal hoops before they speak. The only thing you should need to speak is an opinion.

That’s why on October 20, 2011, the Institute for Justice filed Justice v. Hoseman on behalf of five Mississippians who wish to associate with one another and with others to speak out in favor of proposed Initiative 31 in the election on November 8, 2011. Initiative 31 would reform Mississippi’s laws to protect private property from eminent domain abuses like those in Kelo v. City of New London. The Justice plaintiffs—Vance Justice, Sharon Bynum, Matt Johnson, Alison Kinnaman and Dr. Stan O’Dell—think it unconscionable that the government can take property from one person and give it to another. They want to convince their neighbors to vote for Initiative 31 to protect people’s homes, businesses, and land, but Mississippi’s campaign finance laws have gotten in their way.

This case is just the most recent effort in IJ’s Citizen Speech Initiative, a multi-state effort to restore full protection to political speech. This initiative builds on IJ’s previous precedent-setting litigation freeing political speech from the stranglehold of government red tape. Along with this case, the Institute is releasing a new research report, Full Disclosure: How Campaign Finance Disclosure Laws Fail to Inform Voters and Stifle Public Debate.[2] The report, written by David M. Primo, PhD, Associate Professor of Political Science and Business Administration at the University of Rochester, explains that mandatory disclosure laws do little to help voters and a lot to burden citizen speakers who wish to influence the direction of their laws and their government.

Political speech is not only a right, it is a profound value. As the Supreme Court stated in Citizens United, “[T]he right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” We ought to celebrate the citizens who find effective ways to compete in the marketplace of ideas just as we do their entrepreneurial counterparts in the marketplace of goods and services. Instead, campaign finance laws across our nation needlessly erect barriers that punish political speakers. If freedom of speech is to be the rule, rather than the exception, these laws must be eliminated.

Are You a Regulated “Political Committee”?

Like many Americans, the Plaintiffs in this case—Dr. Stan O’Dell, Sharon Bynum, Matt Johnson, Vance Justice, and Alison Kinnaman—care deeply about the direction of the country, its laws, and its political leaders. For several years, the group has been meeting informally near their homes in Oxford, Mississippi to discuss political and legal issues of the day. Occasionally, they have engaged in activism, organizing rallies and passing out copies of the Constitution on Constitution Day.

Vance Justice is a hydrologist at the National Sedimentation Laboratory for the U.S. Department of Agriculture. Sharon Bynum is an instructor and a Ph.D. student in the History Department of The University of Mississippi (Ole Miss). Matthew Johnson is an instructor of history at Northwest Mississippi Community College. Alison Kinnaman is a tutor at Ole Miss in math, sciences, and psychology. Dr. Stan O’Dell is an emeritus professor of clinical psychology at Ole Miss.

One issue the Plaintiffs have discussed often is private property rights, and, specifically, the impact on property rights of the power of eminent domain. They, like many Americans, were outraged over the Supreme Court’s decision in Kelo v. City of New London, that upheld the use of eminent domain for economic development. As a result, they were quite happy when eminent domain reform made it onto the ballot this year, in the form of Initiative 31.

The Plaintiffs support Initiative 31 and would like to convince their neighbors to vote for it as well. Unfortunately, they face a stumbling block that all too many Americans face when they wish to speak out about political issues—the campaign finance laws.

Most people think laws affect only those running for office. Few are aware that the laws restrict the ability of ordinary Americans to advocate for or against ballot issues. These laws impose serious burdens on First Amendment rights and can result in crushing legal costs and penalties when they are violated. The regulations in Mississippi and other states starkly illustrate how campaign finance laws strangle citizen speech.

Under Mississippi law, any time two or more people join together to spend more than $200 to support or oppose a ballot issue, they become a fully regulated political committee.[3] At today’s prices, even a quarter-page advertisement in the local newspaper, or just a handful of signs and flyers can cost over $200.

Thus, just for trying to speak effectively, the Plaintiffs would have to register with the state, appoint a Director and Treasurer, and file monthly, annual, and other periodic reports of their activities.[4] These reports require the Plaintiffs to keep track of every single dollar that is spent or contributed, and from whom that dollar came.[5] If one of the Plaintiffs just drives to a copy shop to pick up flyers, the value of the gas has to be reported as a contribution.

The reports also require the Plaintiffs to keep track of a great deal of personal information about themselves and their supporters. They have to keep track of each contributor’s name, street address, occupation and employer, together with the amounts and dates of their contributions. [6] Even individuals who wish to spend more than $200 of their own money must report their personal information and activities to the state.[7]

To make matters worse, all the personal information they have to report is made public on the internet for all the world to see. [8] This gives strangers—and potentially political opponents or even identity thieves—access to names, addresses, telephone numbers, occupations, employers, and political views. Mississippians concerned about their privacy, the security of their identity, and potentially their safety, are, therefore, driven out of political speech and involvement in Mississippi. As Full Disclosure confirms, mandatory disclosure laws don’t do the things their proponents have promised; they only impose onerous burdens on speech and scare ordinary Americans away from political engagement-resulting in less speech.

Moreover, campaign finance laws are often so complicated that people have to guess at what they mean.[9] But guessing wrong can lead to fines, late fees, and worse.[10] And guessing wrong is common: In one study 255 people were asked to fill out the actual paperwork required for a grassroots group to speak about ballot issues in various states—not a single person could complete the forms correctly.[11]

In short, the campaign finance laws make politics inaccessible to common citizens and create a trap for the unwary by heavily regulating efforts to speak effectively. Even to spend just a small amount of their own money on signs or flyers, or to run an ad, Plaintiffs have to navigate all these regulations. But speech is not a suspicious act over which the government must keep a watchful eye. It is a basic right that all Americans enjoy. As the Supreme Court has said, “the First Amendment does not permit laws that force speakers to retain a campaign finance attorney . . . before discussing the most salient political issues of our day.”[12]

The First Amendment Guarantees the Right to Speak About Politics

Under the First Amendment, individuals need not obtain the government’s permission to work with their friends and neighbors to speak out about politics. As the Supreme Court has stated, “The First Amendment protects speech and speaker, and the ideas that flow from each.”[13] As a result, according to the Court, “the tie goes to the speaker, not the censor.”[14]

Mississippi’s laws cannot stand under the First Amendment. Citizen speech in America should be encouraged, not regulated by the state into near oblivion.

Under the guise of campaign finance restrictions, however, the view has taken hold that citizens must explain, justify and even apologize for their desire to speak out in order to influence the outcome of elections. The ostensive justification for this approach in the context of candidate elections is that candidates might be “corrupted” by campaign contributions. But this rationale can have no application at all in the context of a ballot issue election, where there is no candidate to “corrupt.” Even so, governments continue to make groups, even small groups like the Plaintiffs that simply wish to join together and speak out about ballot issues, register with the government and make detailed reports in order just to speak.

In Citizens United, the Supreme Court saw these laws for what they are—bans on speech. As the Court recognized, “[a]s additional rules are created for regulating political speech, any speech arguably within their reach is chilled.”[15] The Court, therefore, held that the federal government cannot require even corporations to become heavily regulated political committees (“ PACs”) in order to speak. “PACs” the Court held, “are burdensome alternatives; they are expensive to administer and subject to extensive regulations.” [16] PACs must register with the state, appoint treasurers, open separate bank accounts, keep detailed records of all of their activities and report everything they do to the state. “PACs have to comply with these regulations just to speak.”[17] Nevertheless, Mississippi imposes similar burdens on small citizen groups that wish to spend as little as $200 of their own money on speech supporting a ballot issue. What the U.S. Supreme Court concluded was too burdensome for General Motors must likewise be too burdensome for Dr. Stan O’Dell, Sharon Bynum, Matt Johnson, Vance Justice, and Alison Kinnaman.

Mississippi also forces small citizen groups to disclose personal information about themselves and others just to speak about politics. But the Supreme Court has recognized that compelled disclosures have a “deterrent effect . . . on the free exercise [of the] constitutionally protected right of association.”[18] Dr. Primo’s Full Disclosure report confirms that observation. Demanding this information serves no purpose other than to discourage political participation.

Mississippi’s laws cannot stand under the First Amendment. Citizen speech in America should be encouraged, not regulated by the state into near oblivion.

Conclusion

In America, there is only thing you should need to speak about politics: an opinion. Yet in Mississippi, speakers must also obtain government permission and navigate a thicket of red tape just to join with others and speak effectively about political issues. As the Supreme Court stated in Citizens United, “When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought.”[19]

Vance Justice, Sharon Bynum, Matt Johnson, Alison Kinnaman and Dr. Stan O’Dell just want to join together and speak out in favor of Initiative 31 and against eminent domain abuse. Instead, they are learning a lesson in government abridgment of free speech. They, along with citizens in every state who speak out during this election, recognize implicitly what the Supreme Court made explicit in Citizens United: “The First Amendment confirms the freedom to think for ourselves.”[20]

They, and the citizens to whom they are speaking, should be permitted to do just that.

The Litigation Team

The lead attorney in the Mississippi Citizen Speech litigation is IJ Staff Attorney Paul Avelar who is joined in the litigation by Senior Attorney Steve Simpson.

Russell Latino, III, an attorney with Wells Marble & Hurst, PLLC, will serve as local counsel in the Mississippi Citizen Speech litigation.

The Institute for Justice: A History of Protecting Political Speech

The Institute for Justice is a public interest law firm that brings challenges nationwide in support of fundamental individual liberties, including free speech. IJ has successfully challenged restrictions on political speech across the nation, including:

AZ Free Enterprise Club’s Freedom Club PAC v. Bennett,[21] in which the U.S. Supreme Court struck down the matching funds provision of Arizona’s so-called “Clean Elections” Act. That provision punished candidates who rejected the political welfare of public funding by burying them in red tape, giving extra money to their publicly funded opponents and setting stricter limits on how much they may raise. It also canceled out the speech of independent groups that supported such candidates.

SpeechNow.org v. Federal Election Commission,[22] striking down federal political committee requirements that restrict individuals from donating more than $5,000 to citizen groups that want to independently advocate for or against a candidate.

Sampson v. Beuscher,[23] in which IJ protected six neighbors in Parker North, Colo., who spoke out against the annexation of their neighborhood to a nearby town, from Colorado’s complex campaign finance laws and prosecution by their political opponents under those laws.

San Juan County v. No New Gas Tax,[24] securing a unanimous opinion from the Washington Supreme Court halting efforts by the government to treat on-air radio commentary about an initiative campaign as “in-kind” contributions subject to regulation under the state campaign finance laws.

Broward Coalition of Condominiums v. Browning,[25] declaring unconstitutional Florida’s electioneering communication law, which required any organization speaking out about public issues to register and report their activities to the government.

Farris v. Seabrook,[26] currently pending in front of the Ninth U.S. Circuit Court of Appeals, in which IJ won a temporary injunction allowing a group of citizens who wished to recall a politician from office to collect unlimited contributions because Washington state could not actually prove that such contributions could cause corruption.

Many Cultures, One Message v. Clements,[27] in which IJ is challenging Washington’s requirement that, before ordinary citizens spend even relatively minor amounts of money talking among themselves about political issues for purposes of effectuating political change, that they must register with, and provide personal information to, the government, which then proceeds to disseminate the information on the Internet.

The Institute for Justice is based in Arlington, Va. IJ has state chapters in Arizona, Minnesota, Texas, Washington, and Florida, as well as a Clinic on Entrepreneurship at the University of Chicago Law School.

[1] Citizens United v. FEC, 130 S. Ct. 876, 904 (2010).

: [2] “http://www.ij.org/publications/4105″>http://www.ij.org/publications/4105

[3] Miss. Code Ann. §§ 23-15-801(c); 23-17-47(c); 23-17-49(1).

[4] Id. §§ 23-15-803(b); 23-17-49.

[5] Id. §§ 23-15-807; 23-17-53(a) and (b).

[6] Id. §§ 23-15-807(b) and (d); 23-17-53(a) and (b).

[7] Id. §§ 23-17-51(2); 23-17-53(a) and (c).

[8]§ 23-15-805(d); Mississippi Secretary of State, Elections, Campaign Finance/Lobbying, http://www.sos.ms.gov/elections3.aspx.

[9] Citizens United, 130 S. Ct. at 889.

10] Miss. Code Ann. §§ 23-15-811(a), -813.

: 11]”http://www.ij.org/publications/4105”>http://www.ij.org/publications/4105

[12] Citizens United, 130 S. Ct. at 889.

[13] Id. at 899.

[14] FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 474 (2007).

[15] Citizens United, 130 S. Ct. at 895.

[16] Id. at 897.

[17] Id.

[18 NAACP v. Alabama, 357 U.S. 449, 463 (U.S. 1958)

[19] Citizens United, 130 S. Ct. at 908.

[20] Id.

[21] Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011)

[22] SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010).

[23] Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010).

[24] San Juan County v. No New Gas Tax, 157 P.3d 831 (Wash. 2007).

[25] Broward Coalition of Condos. v. Browning, No. 4:08cv455-SPM/WCS, 2009 U.S. Dist. LEXIS 43925 (N.D. Fla. May 22, 2009).

[26] See Farris v. Seabrook, 2011 U.S. Dist. LEXIS 93060 (W.D. Wash. Aug. 19, 2011).

[27] Pending in the U.S. District Court for the Western District of Washington, No. 10-cv-05253.