We’re Hiring!
Senior Attorney – Institute for Free Speech – Washington, DC or Virtual Office
The Institute for Free Speech is hiring a Senior Attorney with a minimum of seven years of experience.
This is a rare opportunity to work with a growing team to litigate a long-term legal strategy directed toward the protection of Constitutional rights. We challenge laws, practices, and policies that infringe upon First Amendment freedoms, such as speech codes that censor parents at school board meetings, laws restricting people’s ability to give and receive campaign contributions, and any intrusion into people’s private political associations. You would work to hold censors accountable; and to secure legal precedents clearing away a thicket of laws, regulations, and practices that suppress speech about government and candidates for political office, threaten citizens’ privacy if they speak or join groups, and impose heavy burdens on political activity.
A preference will be given to candidates who can work in our Washington, D.C. headquarters. However, we will consider strong candidates living and working virtually from anywhere in the country. In addition to litigation or advocacy-related travel, a virtual candidate would be required to travel for quarterly week-long visits to IFS’s headquarters after the pandemic’s impact has receded.
[You can learn more about this role and apply for the position here.]
In the News
Wall Street Journal: Ted Cruz vs. Frankenstein’s Monster
By Bradley A. Smith
Finding the loan-repayment provision unconstitutional should be easy for the justices. The provision was clearly based on the constitutionally impermissible motivation of trying to favor certain types of candidates over others. And it’s absurd on its face. The provision doesn’t increase the limits on contributions—a donor who has already given the campaign the legal maximum can’t contribute more to help the campaign pay off the loan from the candidate. So how is an official “corrupted” when he is paid back what he is owed? …
Most important, the law limits speech. Since the amendment was passed, candidate loans to their own campaigns tend to halt at $250,000—limiting a campaign’s resources and hence its speech to the public. You might think this works against wealthy candidates, but in fact it works in favor of extremely wealthy candidates, who can afford to write off large sums of money.
Time: The Supreme Court Could Decide if Ted Cruz Gets $10,000. It Matters More Than You Think
By Madeleine Carlisle
Cruz’s allies argue that the law unduly limits political speech by financially restraining candidates from supporting their own campaigns, and stacks the deck in favor of the rich candidates who can afford to spend their own money without getting repaid…
[They also take] issue with the idea that post-election contributions are more corrupting than pre-election donations. The FEC draws an “analogy between repaying a loan and giving a politician a gift,” says Don Daugherty, a senior litigator at the Institute for Free Speech, which advocates against restricting political speech and filed a brief in support of Cruz. “But it’s not the same.”
Instead of corrupting elections, Cruz and his supporters argue that removing the cap would make the political process more accessible to a wider swath of candidates. Self-financing of campaigns is more common among challengers who lack the name-recognition and fundraising network of incumbents, Daugherty says, so the $250,000 repayment ceiling not only limits political speech, in his view, but also disincentivizes people from getting involved in campaigns in the first place.
“We think political activity and political speech is protected by the First Amendment, and in a democracy is inherently a good thing,” he says. “And if you’re going to restrict it, you better have a doggone good reason for doing so.”
Spectrum News 1: U.S. Supreme Court to consider Sen. Ted Cruz’s challenge to campaign finance
By Reena Diamante
In an amicus siding with Cruz, the Institute for Free Speech argued any political activity that increases the amount of political speech out there is protected under the First Amendment. Don Daugherty, senior attorney with the organization, said while they are concerned about actual corruption in politics, he argues the government has no sufficient evidence of such.
“It’s important for democracy to work, for people to be able to get out the message about why they should be elected to federal office, it’s also important that people should be able to support those who they favor for political office,” Daugherty said. “Free political speech is at the heart of the free speech clause in the First Amendment.”
Supreme Court
SCOTUSblog: Justices will hear Ted Cruz’s challenge to loan restrictions in campaign-finance law
By Amy Howe
Cruz argues that the loan-repayment limit places a burden on a candidate’s right to speak out freely to support his own election because it “substantially increase[es] the risk that any candidate loan will never be fully repaid” and therefore “forces a candidate to think twice before making those loans in the first place.” It also places a burden, he suggests, on speech by campaign committees and contributors. When committees have limited cash on hand and have to choose between paying back candidate loans or paying back vendors, they are necessarily choosing what speech to fund. And because the loan-repayment limit “effectively create[s] a ceiling on overall post-election contributions,” it therefore burdens the rights of contributors, he writes.
Even when a less stringent test is applied, Cruz contends, the limit still violates the Constitution.
Courthouse News: Ted Cruz at heart of case that could legalize quid pro quo election contributions
By Kelsey Reichmann
The Senate’s Republican minority leader meanwhile has backed Cruz in a friend-of-the-court brief that calls the FEC’s Bipartisan Campaign Reform Act a “constitutional train wreck.” Referring to the court’s previous decisions on BCRA as the “Humpty Dumpty of campaign-finance law,” Senator Mitch McConnell asks the court to get rid of the entire statute.
McConnell, who is represented by former President Donald Trump’s White House counsel Donald McGahn, says BCRA should be put “out to pasture.”
“If this Court holds the loan-repayment limit unconstitutional, the key provision that made BCRA politically viable (the “Millionaire’s Amendment”) will be completely scuttled,” McConnell’s brief states.
SCOTUSblog: Justices debate speech and religion in spat over flag-flying at Boston city hall
By Amy Howe
The Supreme Court heard oral argument on Tuesday in a free speech case arising from Boston’s practice of allowing outside groups to fly their flags on one of the three flagpoles in front of city hall. A group that was denied permission to fly a “Christian flag” argued at the Supreme Court that it would be “dangerous” to allow the lower court’s ruling upholding the city’s policy to stand, while the city stressed that the its decision to allow other groups to use the flagpole amounts to speech by the city, allowing it to choose which flags it wants to fly.
After nearly 90 minutes of oral argument, some justices seemed troubled by the possible implications of a broad ruling for the group, suggesting that it could require the city to fly offensive flags like a swastika. But at the same time, the justices seemed even more skeptical of the city’s decision to deny the group’s application to fly its flag.
The Courts
Helena Independent Record: Federal judge strikes down Montana’s Clean Campaign Act
By Sam Wilson
A federal judge in Missoula on Tuesday struck down the state’s Clean Campaign Act, finding that the 2007 campaign practices law violated a political committee’s free speech and due process rights under the U.S. Constitution.
The case, filed last September in U.S. District Court in Missoula, was filed by Montana Citizens for Right to Work after the state’s Commissioner of Political Practices found that it failed to follow the law’s “Fair Notice” provision by giving candidates a heads-up on negative mailers sent out shortly before Election Day in 2020.
The law required any candidate or political committee that distributes or broadcasts negative campaign materials within 10 days of an election to notify the targeted candidates in order to give them a chance to respond…
In his order declaring the law unconstitutional, Judge Donald W. Molloy wrote, “Many would agree that while Montana’s desire to promote discourse in response to negative campaign advertisements is laudable, the First Amendment cannot be so easily overcome.” …
Matthew Monforton, an attorney representing the Montana Citizens group, on Monday said that “another section of the labyrinth of Montana’s absurd campaign finance laws has been dismantled, for which all Montanans should be grateful.”
Congress
Politico: Manchin: Primary me if you want, I won’t go ‘nuclear’
By Burgess Everett and Marianne Levine
[Sen. Joe Manchin] told reporters ahead of a Democratic Caucus meeting he would not go along with instituting a talking filibuster, which could be used to evade the Senate’s 60-vote threshold, nor would he entertain a rules change by a simple majority…
Manchin said he doesn’t “take anything personally” as Senate Majority Leader Chuck Schumer presses forward with a vote on weakening the filibuster. Schumer confirmed to reporters after the meeting that he would propose a talking filibuster only covering the package of bills currently in front of the Senate and dismissed Manchin and Sinema’s positions as out of step with the rest of the caucus…
The Senate Democratic caucus huddled on Tuesday evening to discuss the coming confrontation over changing chamber rules to help shore up the Voting Rights Act and enact federal election standards. During the meeting, Manchin “expressed disagreement” with the justification his party is using to change Senate rules, according to one attendee.
Under the talking filibuster proposed by Schumer, the voting and elections package would only require a simple majority to advance toward final passage, preceded by a lengthy debate. No further bills would get the same treatment; the Senate took up the election reform bill Tuesday and is expected to begin the rules debate on Wednesday.
Donor Privacy
Wall Street Journal: Cancel Culture Targets Charity
By Jeremy D. Tedesco
Americans have always been free to give to nonprofit causes they believe in, but left-wing political activists are determined to limit that freedom…
Unmasking Fidelity, a loose coalition of fringe groups, recently delivered a list of demands to Fidelity Charitable, which manages a donor-advised fund through which account holders can direct contributions to their favorite nonprofits…
On the list of Unmasking Fidelity’s demands was a call for Fidelity Charitable to disclose five years’ worth of its contributions to 10 targeted organizations, including the Family Research Council, Turning Point USA and my employer, the Alliance Defending Freedom…
No matter what you think about the issues of the day, everyone should oppose this name-and-shame censorship. A politicized philanthropic culture, in which an outside activist’s demands trump a donor’s intent—and even expose donors to harassment—is dangerous for people of every political stripe.
The States
Richmond Times-Dispatch: Senate committee kills proposal to limit campaign contributions in Virginia
By Patrick Wilson
Virginia is one of just a few states where donors can give unlimited money to political candidates, and senators from both parties want to keep it that way.
They rejected on Tuesday a proposal from Sen. Chap Petersen, D-Fairfax City, to cap at $20,000 the amount someone can give to a Virginia candidate in an election cycle. The limit on donations to federal candidates is $2,900…
The bill died on a 10-5 vote in the Senate Privileges and Elections Committee…
Nancy Morgan of Northern Virginia, the state coordinator of the Virginia chapter of the citizen group American Promise, said she wasn’t overly surprised that the Senate committee stopped the bill and has hope that delegates in the House will advance a similar measure in a bipartisan way.
She said she’s hoping that with amendments, a piece of legislation could become suitable.
Her group last year released a study on campaign finance reform in Virginia after lawmakers failed to broadly study the issue.
