IJ Appeals Two Cases to U.S. Supreme Court

October 7, 2009

IJ never gives up. Whenever we launch a case, we are committed to pursuing it to the very end. Such tenacity has taken us to the U.S. Supreme Court three times in recent years and to various state supreme courts. In this spirit, we are urging the U.S. Supreme Court to take two cases we have litigated from the trial court through to the highest court in the land that address vital constitutional concerns.

Fighting for Free Speech; Battling Campaign Finance Restrictions

Little by little, America is turning away from free and robust political speech. Politicians are imposing government-enforced restrictions in the guise of so-called campaign finance reforms on vital political discussion. In practice, campaign finance laws silence political speech and make it nearly impossible for anyone except political pros to participate in any meaningful way in the political process. Even the most basic grassroots activists must now register with the government before they speak or else face the wrath of their opponents, who employ campaign finance restrictions and disclosure demands to sap the resources of those they disagree with and intimidate them into silence.

In August, IJ appealed to the U.S. Supreme Court a Colorado case we began litigating in March 2006 in which the Independence Institute, a free market think tank, was sued by its political opponents for merely airing its opinion on two ballot measures that would raise taxes. The Independence Institute’s opponents filed a complaint with the Colorado Secretary of State designed to silence the Institute at a critical time in the campaign. Keep in mind that campaign finance laws are totally irrelevant in the ballot measure context; the primary justification for campaign finance restrictions is to do away with real or perceived political quid pro quos, but with ballot measures like the ones the Independence Institute spoke out on, there is no politician to corrupt or to grant favors. A ballot measure is merely words on a page.

Colorado’s vague and overbroad law imposes significant burdens on groups that wish to speak out about ballot issues and prevents contributors from engaging in anonymous speech and association—the kind of political speech and association that dates back to the very founding of our nation.
Burying Maryland’s Funeral Home Cartel

America was founded as a nation that was to be free from interstate restrictions on commerce. Yet the Fourth U.S. Circuit Court of Appeals recently held that the interstate movement of investment capital and profits—as opposed to physical goods—is not “commerce” within the meaning of the U.S. Constitution’s Commerce Clause. The court held that a Maryland law that restricts funeral home ownership to a politically favored in-state cartel and generally bars interstate investments in funeral homes by corporations, does not impose an undue burden on interstate commerce.

That ruling contradicts U.S. Supreme Court precedent and prior federal appellate court case law, and if this rationale were consistently applied, interstate trade would be brought to a halt. As IJ Senior Attorney Clark Neily announced when appealing this case to the nation’s High Court, “Maryland is clearly and deliberately trying to shield local funeral directors from competition, and it is doing so at the expense of Maryland residents—and the Constitution.”

The influential SCOTUSblog recently wrote, “Besides testing the law’s impact on capital and business form, the new petition asks the Court to clarify how far states must go to prove that there are local benefits that outweigh any burden a business-regulating law imposes on commerce among the states—essentially, a plea for the Court to revisit its most important precedent on that issue: Pike v. Bruce Church, in 1970. The Brown case is part of the long-running campaign to challenge business regulation, particularly as it affects small businesses, by the Institute for Justice, a free-market advocacy group based in Arlington, VA.”

The Supreme Court is expected to decide early in the upcoming term whether it will take up either of these cases.

You can always count on IJ to wage its strategic public interest litigation campaigns tirelessly and for the long haul. From the moment we file a case, we will not rest until every possible avenue for success has been explored. When that leads to the U.S. Supreme Court, we make sure it is an historic occasion as we did in the fight for school choice, for interstate wine shipments and against eminent domain abuse. We hope the Supreme Court will grant review in these two cases so we can defend two fundamental principles of American liberty: free speech and free trade.

John E. Kramer is IJ’s vice president for communications.

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