The Institute for Free Speech has just released a 102-page report titled Free Speech Index – Grading the 50 States on Political Giving Freedom. The foreword to the report was written by Bradley A. Smith (Chairman and Founder) and David Keating(President). Below is a partial description of the report and an executive summary of it:
Each of the 50 states has its own collection of campaign finance laws and regulations limiting the freedoms of speech, assembly, and petition. Many of these state laws are poorly written, complex, or both. Despite the advances made in constitutional protections for speech over the last decade, our politics, and campaign finance in particular, remains more highly regulated than at any time prior to the 1970s, and in some important ways more highly regulated than ever. Far from a “wild west” with no rules, arcane campaign finance rules govern the minutiae not only of almost every campaign, but of what ordinary citizens and the groups they belong to can say, and how and when they can say it.
To assess the impact of such speech regulation, we created the Free Speech Index. In the future, we hope to publish similar ratings of state laws on other types of restrictions on political speech. This first installment measures the freedom of individuals, political parties, and groups to contribute to causes and candidates they support.
This installment of the Free Speech Index rates each state on how well it supports free speech rights in a core area of political participation: the rights of individuals and groups to contribute to and support the candidates and causes of their choice.
To assess each state in this area, we ranked the states on nineteen variables grouped into five categories:
- Individual Freedom (the ability of individuals to give to candidates, parties, and political committees, known informally as PACs);
- Party Freedom (the ability of political parties to give to or support their candidates);
- Group Freedom (the ability of PACs to give to candidates and parties);
- Inflation-Indexing Provisions; and
- Union and Corporate Freedom (the ability of unions and corporations to donate to candidate campaigns).
- States earn points in each category, which are then weighted and combined to produce a total score from 100 to 0 and a letter grade, from A+ to F.
Because the states and legislative districts vary widely in population, contribution limits were compared based on population. For example, a $1,000 per election contribution limit in a New Hampshire State House district with a roughly 2,500 voting-eligible population is much less restrictive than a $1,000 per election South Carolina limit where the State House district has over ten times the number of voters. We also had to account for the wide variety of ways in which states write campaign limit laws. For a full explanation of the five categories and how the scores are computed, see the Methodology section.
Eleven states received an A+ or A grade. The top 11 rated states overall were: Alabama, Nebraska, Oregon, Utah, and Virginia (each tied for #1), Mississippi (#6), Iowa (#7), Indiana (#8), and North Dakota, Pennsylvania, and Texas (each tied for #9). These 11 states are diverse in size, population, geography, and politics. They include large states (Texas), less populated states (North Dakota), eastern states (Pennsylvania), western states (Utah), blue states (Oregon), and red states (Alabama).
The best overall grade, A+, went to Alabama, Nebraska, Oregon, Utah, and Virginia. These five states permit individuals, political parties, and PACs to contribute unlimited sums to the candidates, parties, and causes of their choice. These states also allow unlimited donations from unions and businesses to candidate campaigns. Because none of these states impose limits, all received the same top grade.
The five lowest scores belong to Kentucky, West Virginia, Alaska, Colorado, and Maryland. In the end, eleven states receive an F, a sad commentary on the widespread existence of stringent restrictions on political giving across the country.
States in the middle of the rankings all have their own specific shortcomings. For example, Illinois and Nevada rank 29th and 30th in the Index, respectively. Both receive a C- grade. Yet, their limits are polar opposites. Nevada allows individuals to give unlimited amounts to parties and political committees, but imposes low limits on contributions from parties to candidates and fails to adjust these limits for inflation. Illinois allows parties to provide unlimited support to their candidates, and its limits are adjusted for inflation, but individuals can only give small amounts to parties and PACs.
The Costs of Denying Free Speech on Colleges Campuses — Attorneys’ Fees Awards
Too often the costs of denying free speech claims are lost sight of, especially when it is the government who is spending taxpayer dollars to defend patently unconstitutional actions. It would be in the public interest to give greater exposure to these matters and even have some running tally of all such awards involving public colleges. The case below is a recent example of this phenomenon.
Iowa State University’s effort to block a pro-marijuana student group from using the school’s trademarks on T-shirts has cost state taxpayers much. On March 21, 2018, Federal District Judge James E. Gritzner ordered the Defendants in Gerlich v. Leath to pay “the stipulated request for attorney fees in the amount of $570,233.55, [which] is within the range of fair and reasonable fees for the services provided in this matter.”
“Further, the Court concludes the stipulated request for costs in the amount of $27,974.62 is also fair and reasonable in the context of this litigation.”
Total Costs — Damages & Attorney Fees: With the fees for the appeal and the negotiated payments to the students, the total cost paid to the defendants and their attorneys by Iowa State University was $940,000.
- This does not include the costs of the Iowa Attorney General’s office, which represented ISU administrators.
- See Iowa State University – Stand Up For Speech Lawsuit, FIRE, March 2018
Did White House Staff Sign Away Their First Amendment Rights?
This from First Amendment Watch:
“The Washington Post reports that senior White House staffers in President Trump’s administration were asked to sign long-term nondisclosure agreements which would prevent them from revealing confidential information. These agreements extended beyond the normal confidentiality obligations around classified information or attorney-client privilege and included fines if they were broken. What exactly is the law that would govern NDAs?”
“Heidi Kitrosser of the University of Minnesota told Reuters that ‘These NDAs strike me as clearly unconstitutional under the First Amendment’ because the First Amendment protects free speech from government restriction, and White House personnel are employed by the government not by President Trump. This is not absolute in all cases. In Garcetti v. Ceballos (2006), the U.S. Supreme Court ruled public employees can be fired or otherwise disciplined for speech connected to their jobs. Several scholars suggested that President Trump does not need NDAs at all – he can just fire employees who have divulged confidential information.”
Ronald K.L. Collins is the Harold S. Shefelman Scholar at the University of Washington School of Law and was a scholar at the Washington, D.C., office of the First Amendment Center from 2002 to 2009.