Beaumont Amicus Brief Project Description

We can do something extra to create a receptive atmosphere in the High Court. Call it "climatizing."

We are considering preparing and filing, on behalf of a group of interested organizations, a brief (amicus curiae) in favor of the respondents — and contrary to the position of the Federal Election Commission — in the case of Federal Election Commission (FEC) v. Beaumont, et al. A brief of this nature is an educational effort, warming up the Justices to your claims.

FEC v. Beaumont is another in a string of recent cases reaching the Supreme Court, in which an FEC regulation has been challenged as inconsistent with the free speech and association guarantees as authoritatively decided in Buckley v. Valeo. In two recent cases, challengers have lost, in part, because they did not challenge the Buckley rules, even though several justices have indicated a willingness to revisit Buckley.

Currently, there are three justices, Thomas, Scalia, and Kennedy, who have explicitly stated that they favor overruling Buckley. Additionally, Court majorities in campaign finance cases have, at least twice, noted that they were not reexamining Buckley only because no party requested it!

And Justice Stevens, who wrote the majority decision in Watchtower (the last case we filed a brief making many of the same Freedom of the Press arguments), is considered by most observers to be a member of the liberal wing of the Court. Apparently the free press arguments had some pull in that case with the liberals! We don't believe it's being too optimistic to say that we might well have four Justices already predisposed to our arguments!

FEC v. Beaumont involves a provision in the Federal Election Campaign Act, which prohibits corporations from spending money on federal elections. When the statute was written, it was meant to apply to for-profit corporations, but the language used in the law was not clear. Whenever the FEC has a chance to read a restriction broadly, it takes it. So the FEC's position is that the ban on for-profit corporations applies equally to nonprofit corporations.

The intent of Congress in writing the law was to apply to U.S. Steel. But the FEC has misused it to apply to every incorporated citizens group in the country — even if the nonprofits incorporated only for purposes of protecting the directors from personal liability. The Beaumont case could force the FEC to give citizen lobbies greater authority to participate in federal elections, even if they are incorporated.

A few years ago the Supreme Court took a baby step in this direction by allowing certain nonprofit corporations to make independent expenditures. The Beaumont case would move the ball much further down the field, allowing nonprofits to contribute directly to candidates.

The lawyers working on Beaumont are confining and limiting their attack on the Federal Election Campaign Act. They are working within the confines of most existing law, no matter how bad that law is. We believe that the attack should be broadened.

We want to attack Buckley v. Valeo. We want to explain to the Court the concept of press freedom. We want to challenge the status quo. And fortunately for us, the issue in Beaumont overlaps nicely with one of the issues that the Supreme Court will be revisiting in a few months when our case goes to the Supreme Court.

Beaumont gives us an opportunity to place squarely before the United States Supreme Court a vindication of the text of the First Amendment's Press Clause — and to show that the press freedoms belong to the people.

To many people (unfortunately including many Justices), the Freedom of the Press has been merged with the Freedoms of Speech and Association so that now all three are buried underneath the bland heading Freedom of Expression. We need to focus the Court back on the original unvarnished, undiluted, Freedom of the Press.

Furthermore, the only people who talk about the Freedom the Press as a separate freedom are the institutional press. They seem to think it is merely a protection for corporate mass media. We're seeking to change this paradigm.

And we want to show that denying contributors the right to invest in campaigns is Constitutionally no different than denying investors the right to purchase freely shares of Knight-Ridder or denying advertisers the right to purchase advertising in the Washington Times. Either prohibition violates the Press Freedom of the investor/contributor by denying him the ability to publish through his chosen means.

Viewing contributors as having the same rights as investors or advertisers in a newspaper company would be a major change. It is the basis for a fundamental assault upon Buckley v. Valeo because Buckley did not recognize the rights of contributors to do any more than make "symbolic" contributions. But for you and I, contributions are much more than symbols. Contributions provide us the ability to buy the presses that spread the message of free markets and limited government.

Additionally, once political contributors are recognized as investors or advertisers in a media enterprise, there is no basis for distinguishing between investment from individual donors or from incorporated groups of donors in public advocacy groups such as our co-plaintiffs Citizens United, or Gun Owners of America, or even RealCampaignReform.org. Full acceptance of our argument would involve overturning Buckley to the extent that it allowed any limitations on political contributions by either individuals or advocacy groups.

Thus, it is vital that we make the best presentation possible in this case to protect our position in the Paul case. The Court sitting now is different than the Buckley Court and may be inclined to overturn Buckley. But, if we stand by and let them rely on Buckley one more time, and reach the wrong decision here, it will be that much harder to get these same Justices to overturn Buckley based on our arguments in the Paul case which they will hear later this spring.

In addition to the importance of the Beaumont case itself, we want to solidify the case, improve our odds, and make that extra effort that could be the difference in our case. A brief in the Beaumont case may well serve as extra credit — a way of making the climate more receptive when we present our case to the Supreme Court.

On principle, we believe we should do this. It does not appear that Buckley will be attacked in Beaumont — unless it is done so by an amicus brief. We strongly believe Buckley should be attacked, not only because Supreme Court Justices have indicated that they favor overruling it, but also because Buckley was wrongly decided. And it should be challenged in Beaumont because nonprofit public policy corporations shouldn't be governed by the Buckley limitations on contributions.

But for us, there is a practical reason to file a brief in this case is that it could have a real impact on the current constitutional challenges to the BCRA (that is currently pending before a three-judge district court; where our case, Paul v. FEC is filed) and will be at issue in the direct appeal to the Supreme Court that will almost inevitably follow.

We believe that an amicus brief should be filed in Beaumont challenging the Buckley distinction between contributions and expenditures, not merely on speech and association grounds, but also on the ground that these campaign finance laws violate the freedom of the press.

If the press clause were applied to the current campaign finance reform system, and if the Supreme Court precedents applying the press clause were applied to campaign finance regulations, our case (Paul v. FEC) would win!

From a legal perspective, winning would mean that the entire system should be found to be an unconstitutional "licensing" system that imposes forbidden prior restraints, editorial controls and discriminatory economic burdens on individuals, campaigns, non-profits, and political parties.

From a practical perspective, WINNING WOULD MEAN that when you ran for office, you wouldn't have to file with the government first and get the assistance of an expert to fill out the complicated forms — while still risking going to jail for five years for violating one of the most complex sets of federal rules ever written. And if a close friend, family member, or avid supporter wanted to contribute $5,000 or $10,000 to your campaign, you could accept it.

It will cost us $15,000 to file this brief, but $8,000 of the expense is already covered. Please help us with the remaining expense right now.