The First Amendment Isn’t First-Come, First-Served

June 4, 2014

Can the government say that only the first 12 people at the polls on Election Day get to vote for every office and everyone else gets to vote for only half the offices? Of course not. In this country, we don’t dish out rights on a first-come, first-served basis.

Except in Minnesota, apparently. To teach the state that the “First” in “First Amendment” does not mean first-come, first-served, IJ filed a lawsuit in April 2014 challenging the state’s “special sources limit.” The law allows donors to contribute a certain amount to candidates—$1,000 for Minn. House of Representatives on up to $4,000 for governor—but cuts the amount in half if the candidate raises “too much” money. For state house cam- paigns, once 12 people contribute $1,000 to a candidate, everyone else can donate only $500. Since candidates use that money to speak to voters, this means donors who wait to contribute have fewer free-speech rights than those who contributed early.

IJ’s challenge was filed a mere seven days after the U.S. Supreme Court struck down a similar law in McCutcheon v. FEC, a case IJ followed closely and in which we filed an amicus brief. There, Congress banned donors from contributing more than a specified sum to all candidates combined, even if none of the separate contributions exceeded the per-candidate limit of $5,200. The Supreme Court rightly struck down the law as violating donors’ First Amendment rights. The Court reasoned that if Congress thinks it is OK for a per- son to donate $5,200 to one candidate, that person should be able to donate the same amount to others. Minnesota’s law, in comparison, is an even more egregious limit on speech. It applies to a donor contributing as little as $501 to a single candidate because of what prior donors have done. IJ’s case may have been filed seven days after McCutcheon, but it took much longer than seven days to build. Last year, IJ’s campaign-finance team saw the coming McCutcheon decision as an opportunity to further the cause of unshackling political speech. Lawyers at our Minnesota Chapter talked to numerous donors and candidates, looking for a few brave souls willing to stand up to Minnesota’s speech police. We found our champions in Doug Seaton and Van Carlson, Minnesota residents and campaign donors whose speech has been stymied because of the special sources law, and in candidates Linda Runbeck, a state representative, and Scott Dutcher.

IJ is particularly excited about this case because it is the first time IJ has directly challenged a campaign contribution limit that applies to candidates. It’s the latest in our attempt to revive the core of the First Amendment: protecting what we say about who we elect to office.

Anthony Sanders is an IJ attorney.

Subscribe to get Liberty & Law magazine direct to your mailbox!

Sign up to receive IJ's bimonthly magazine, Liberty & Law, along with breaking news updates about the Institute for Justice's fight to protect the rights of all Americans.