The media can influence politics in ways that political causes cannot. We'll argue that political causes have the same First Amendment right to an unrestricted freedom of the press that the institutional media does. The purpose of this lawsuit is to restore the freedom of the press for individuals -- especially political causes.
We'll demonstrate that the First Amendment of the United States Constitution protects the right of citizens to communicate through "the press," which means print, radio, television, and now the Internet.
Keep in mind that there are no legal prohibitions or restrictions on the political speech of "the press." The media can make any political statement they want in any manner they choose about any party or candidate, and can publicize or not publicize, attack or not attack, any political cause, without limitation.
The media does not need to obtain a license from the federal government to engage in political speech, there are no limits on how much they can raise and spend on political speech, and they are not required to report to the government the names, addresses, and occupations of the people who fund their political communications. This is as it should be.
The media is free to make or break political causes. But political causes (parties, candidates, and other political organizations), no longer have an equal right to compete with the media in the area of political speech. Unlike the media, political causes must acquire a license from the government to engage in political speech. They are also limited in what they can say and when they can say it. They are restricted in what they can raise and spend on political speech, and must report to the government the sources of their funding.
These restrictions (on the free press rights of political causes) were created by the Federal Election Campaign Act of 1971 (FECA), and have been expanded by amendments since that time. Recently, with the passage of the Bipartisan Campaign Reform Act of 2002 (BCRA) these restrictions were expanded yet again to include an absolute prohibition on political communications through broadcast, satellite, or cable within 60 days of a federal election (30 days before a primary), and once again this restriction on the freedom of the press applies only to political causes.
Numerous challenges have been mounted against the FECA in the past, with regard to the First Amendment's protection of free speech or free association. The courts have previously ruled in Buckley v. Valeo that, while the FECA was a violation of the First Amendment protection of the freedom of speech, this particular violation was warranted because of a "compelling state interest" in reducing the appearance of political corruption, and because other avenues for exercising political free speech were left unrestricted.
However, since Buckley v. Valeo, no case has been brought to bear on federal campaign finance laws that challenges them using freedom of the press as their core argument. It seems obvious (to us at least) that the FECA and BCRA create an inequality in the law between the media and political causes. So our lawsuit will make this challenge.
In addition, the current challenges against the new BCRA deal only with the latest restrictions created by that act. But our lawsuit will attack both the new restrictions, and the old.
Specifically, we are asking the courts to declare that the FECA and the new BCRA are an unconstitutional violation of the First Amendment protection of the freedom of the press. We are asking the courts to deny the power of the Federal Election Commission to enforce the restrictive regulations established under the FECA and the new Bipartisan Campaign Reform Act.
Victory for these claims will have a profoundly beneficial effect on the American political system. Political causes will . . .
- No longer need to receive a license from the federal government in order to create and distribute political communications,
- No longer be restricted in what they can say and when they can say it,
- Not be limited in how much they can raise and spend on political communications,
- No longer be compelled by law to report the sources of their funding to the government.
These changes will . . .
- Place political causes on an equal footing with the media,
- Help level the playing field for challengers versus incumbents,
- End the greatest inequity new parties face versus established parties.
The benefit for voters will be . . .
- Increased information with which to make more informed choices,
- An expanded number of viable choices on election day,
- Increased competition between candidates and parties.
These benefits are explained in detail in an article called, "Liberty for citizens or only for politicians?"
Finally, the prospects for a favorable ruling are very good because . . .
- The previous court rulings on free press issues are in our favor. Ruling against our claim would unravel those precedents and create a climate of uncertainty -- a factor to which the Court has historically been sensitive.
- The "compelling state interest" exception is weakened in the case of "freedom of the press" versus "freedom of speech" argument because of the very high level of proof the government is required to provide demonstrating the need for prior restraint.
- Abridgments of the Constitution based on "compelling state interest" require that the abridgment represent the lowest minimum imposition in order to address the "compelling interest." This is not the case in terms of federal reporting requirements for political causes for the simple reason that political causes are still able to make voluntary disclosures, and voters are free to vote against those that do not.
- In the two most recent Supreme Court cases involving campaign finance, Justice Thomas called for the overturning of Buckley v. Valeo (despite the fact that none of the parties requested they consider doing so). Justice Scalia joined him in both cases, and Justice Kennedy joined them on the most recent case, indicating that they have little confidence in current campaign finance laws to begin with. Those Justices are often called the "conservative" wing of the Court. But a freedom of the press claim has appeal beyond the conservative wing, perhaps interesting three, or even four more Justices.
The most likely argument opposing our claim is that the press is NOT an individual right. Our attorneys have addressed that in this document (.pdf file).
You can read the entire complaint by clicking here (.pdf file).
-- Jim Babka, President