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Lovell v. City of Griffin SUPREME COURT OF THE UNITED STATES 303 U.S. 444 Argued February 4, 1938 Decided March 28, 1938

The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion. What we have had recent occasion to say with respect to the vital importance of protecting this essential liberty from every sort of infringement need not be repeated. Near v. Minnesota, supra; Grosjean v. American Press Co., supra; De Jonge v. Oregon, supra.[note 2]

Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such [384 U.S. 214, 219] matters relating to political processes. The Constitution specifically selected the press, which includes not only newspapers, books, and magazines, but also humble leaflets and circulars, see Lovell v. Griffin, 303 U.S. 444 , to play an important role in the discussion of public affairs.

UNITED STATES v. ASSOCIATED PRESS et al. Nos. 57, 58 and 59. Argued Dec. 5, 6, 1944. Decided June 18, 1945

It would be strange indeed however if the grave concern for freedom of the press which prompted adoption of the First Amendment should be read as a command that the government was without power to protect that freedom. That Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society. Surely a command that the government itself shall not impede the free flow of ideas does not afford non-governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not. Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests.

FEDERAL ELECTION COMMISSION v. CHRISTIAN COALITION STATEMENT FOR THE RECORD

CHAIRMAN SCOTT E. THOMAS COMMISSIONER DANNY LEE MCDONALD

Until the important and recurring issues of what constitutes express advocacy and coordination have been decided by the Supreme Court, the uncertainty and conflict created by the lower courts will continue. Our colleagues mislead themselves if they think these issues will be settled without future word from the Supreme Court.

OBSTACLES TO EFFECTIVE ENFORCEMENT OF THE FEDERAL ELECTION CAMPAIGN ACT

Commissioner Scott E. Thomas* jeffrey H. Bowman*

At some point, though---------------, the Supreme Court must decide where this "delicate balance"[170] rests and eventually rule on such issues as what constitutes express advocacy and coordination. It is, after all, the ultimate responsibility of the Supreme Court to resolve constitutional disputes and "say what the law is."[171] Indeed, if constitutional concerns demand that express advocacy and coordination be interpreted in such a way as to effectively dismantle the FECA, so be it. Such a weighty decision, however, should be based on a definitive Supreme Court ruling and not on a sampling of lower court decisions or the constitutional musings of Federal Election Commissioners. Until such a decision is made by the Supreme Court, an enforcement agency such as the Federal Election Commission has little choice but to enforce the law as written and not allow its provisions to be circumvented and its effectiveness riddled by loopholes.

In the Matter of The Coalition National Republican Congressional Committee, et al.

MUR 4624

STATEMENT FOR THE RECORD COMMISSIONER BRADLEY A. SMITH

When a person decides to make independent political expenditures, he opens himself up to two potential burdens under the Act. The first burden is to report those independent expenditures in excess of $250.00. See 2 U.S.C. § 434(c). The second is to defend against allegations that the advocacy was somehow authorized by or coordinated with a candidate which, if true, would lead to still greater limits on the person’s political activity. See 2 U.S.C. § 431(17). Respondents can spend substantial sums defending themselves against such allegations, and this possibility will cause many speakers to avoid engaging in what ought to be constitutionally protected speech.

Despite the fact that the Commission has now found no violations in this case, I strongly suspect that the original complainant, the Democratic National Committee, considers its complaint to have been a success. The complaint undoubtedly forced their political opponents to spend hundreds of thousands, if not millions of dollars in legal fees, and to devote countless hours of staff, candidate, and executive time to responding to discovery and handling legal matters. Despite our finding that their activities were not coordinated and so did not violate the Act, I strongly suspect that the huge costs imposed by the investigation will discourage similar participation by these and other groups in the future.[5]

We cannot fault the complainant DNC for pursuing its political goals through the legal tools made available to it, but nor can we on the Commission blind ourselves to the fact that the substantial majority of the complaints filed with the Commission are filed by political opponents of those they name as respondents. These complaints are usually filed as much to harass, annoy, chill, and dissuade their opponents from speaking as to vindicate any public interest in preventing "corruption or the appearance of corruption."[6] This knowledge makes it particularly important that we be sensitive to the possibility that our interpretations of the Act can, and sometimes do, chill what is and ought to be constitutionally protected political speech.

Anonymity and the Internet: Constitutional Issues in Campaign Finance Regulation

Testimony of David M. Mason Commissioner, Federal Election Commission at a hearing on The First Amendment and Campaign Finance Reform before the Subcommittee on the Constitution, Committee on the Judiciary U.S. House of Representatives April 29, 1999

The Complexity and Persistence of Constitutional Questions in Campaign Finance

As one Member of the Independent Agency charged with interpreting, administering and enforcing (in a civil context) the Federal Election Campaign Act, what strikes me most is the degree to which constitutional considerations are an everyday factor in the administration of campaign finance law. For example, the Commission currently has twelve active regulations projects, seven of which directly implicate rights of speech, press or association. These range from major projects, such as our soft money rulemaking, to relatively minor ones, such as the definition of "personal funds."

The result of this plethora of post-Buckley constitutional litigation is that the Federal Election Commission sits as a sort of permanent administrative tribunal determining the degree and type of First Amendment freedoms different individuals and organizations are entitled to depending on our analysis of their purpose (political committee status), legal organization (for-profit, non-profit, LLC, partnership), FECA status (political party, press), internal structure (membership), private communications (coordination), as well as their mode of speech.

The "mainstream media" has carefully concealed the fact that most Americans no longer enjoy the same "First Amendment Rights" that every generation of Americans prior to 1975 had! Prior to 1975 every U.S. Citizen, political party and political organization enjoyed the same "Free Press Rights" as the Courier Journal or the New York Times. Prior to 1975 U.S. Citizens were not required to register with the Federal Election Commission before publishing their political opinions and the Republican and Democratic parties were allowed to endorse their candidates in newspapers owned and operated by their political parties.

2 USC 431 (9) (B) The term "expenditure" does not include -

(i) any news story, commentary, or editorial distributed

through the facilities of any broadcasting station, newspaper,

magazine, or other periodical publication, unless such facilities

are owned or controlled by any political party, political

committee, or candidate;

2 U.S.C. 431 (9) (B) (i) divides use of the printing press a "free press" into two categories:

The regulated majority...... every living U.S. Citizen, political party and political organization

and the unregulated commercial media.

Excerpts below are from page 25 The Media Monopoly paperback Fifth Edition

Under law, the director of a company is obliged to act in the interests of his or her own company. It has always been an unanswered dilemma when an officer of Corporation A, who also sits as a director on the board of Corporation B, has to choose between acting in the best interests of Corporation A or of Corporation B.

Interlocked boards of directors have enormously complicated potential conflicts of interest in the major national and multinational corporations that now control most of the country's media.

A 1979 study by Peter Dreier and Steven Weinberg found interlocked directorates in major newspaper chains. Gannett shared directors with Merrill Lynch stockbrokers), Standard Oil of Ohio, 20th-Century Fox, Kerr-McGee (oil, gas, nuclear power, aerospace), McDonnell Douglas Aircraft, McGraw-Hill, Eastern Airlines, Phillips Petroleum, Kellogg Company, and New York Telephone Company.

The most influential paper in America, the New York Times, interlocked with Merck, Morgan Guaranty Trust, Bristol Myers, Charter Oil, Johns Manville, American Express, Bethlehem Steel, IBM, Scott Paper, Sun Oil, and First Boston Corporation.

Louis Brandeis, before joining the Supreme Court, called this linkage "the endless chain." He wrote: "This practice of interlocking directorates is the root of many evils. It offends laws human and divine. . . . It tends to disloyalty and violation of the fundamental law that no man can serve two masters.... It is undemocratic, for it rejects the platform: 'A fair field and no favors."'

It is normal for all large businesses to make serious efforts to influence the news, to avoid embarrassing publicity, and to maximize sympathetic public opinion and government policies. Now they own most of the news media that they wish to influence.

Where does our Constitution grant any private business the authority to choose when or if any Citizen will or will not be [E]xempt from state or federal election laws and by what [L]awful authority does any 'private corporation' presume to restrict, exempt or determine the 1st Amendment Rights of any...... [L]iving Citizen at any time?

Below: excerpts from An article written by FEC commissioner Bradley A. Smith titled 'No Power to the Little Guy' which appeared in the Wall Street Journal Editorial page,Tuesday, March 20, 2001 12:01 a.m.

This past fall I received a call from a professor at my former law school. Students at the school had started a group called Law Students for Bush-Cheney, and he was their faculty adviser. "That’s great," I told him. "Don’t spend more than $250, or you’ll have to register as a political committee with the Federal Election Commission and start filing detailed reports." Unsurprisingly, the group didn’t do much after that.

The effect of this regulatory nonsense on ordinary citizens is evident. We recently received a letter from a retired accountant who’d volunteered to serve as a campaign treasurer out of a sense of civic responsibility. The writer was facing a $7,000 fine because a volunteer campaign worker had mailed the campaign’s FEC report to the wrong address, causing the campaign to violate reporting requirements.

Most local party officials get little recognition and are rarely paid. They make a substantial time commitment because of their belief in their party and its candidates, only to be penalized for their involvement. And regulations take their toll. Take the following letter, from another experienced accountant facing personal liability: "I acted as campaign treasurer because I strongly believed in, and I wanted to participate in the political ......... For what it is worth, I will never be acting as treasurer again. It Is clear from the complexity of the rules, and the quantity of literature sent and expected to be read and understood in its entirety, and the size of the penalties, it could never be intended that anyone other than a specialist act as treasurer in a campaign."

There is no doubt that each of these respondents violated the law. All because we are, in a fruitless effort to stop "corruption," making war on some of our most honest, involved citizens. We have walled them off from political participation, leaving the field open to lawyers, operatives, and political consultants who game the system. McCain-Feingold will only make the situation worse.

House of Representatives Committee on the Judiciary
Subcommittee on the Constitution

Subcommittee Hearing on "Free Speech and Campaign Finance Reform"- February 27, 1997

Before discussing the details of campaign finance, I think it is important to briefly remind ourselves that, for most of this country's history, the funding of political campaigns has been totally or largely unregulated. During our nation's first century, the era which produced as presidents Abraham Lincoln, George Washington, Thomas Jefferson, Grover Cleveland, James Knox Polk, and Andrew Jackson, and which saw giants such as Daniel Webster, Henry Clay, John Quincy Adams, and John C. Calhoun serve in Congress, there were literally no laws regulating campaign finance. And today, we often look back on that century as a golden age of politics -- one in which memorable debates over such monumental issues as slavery and western expansion were discussed in serious campaigns, one in which people talked and debated these issues, one in which politics was marked by mass rallies and torchlight parades, and one in which voter turnout was considerably higher than it is today. The federal government did not become involved in campaign finance until this century. If we look back, we find that the arguments made in favor of regulation a century ago were the same that we hear today: that the American people believed Congress to be made up of the "instrumentalities and agents of corporations;" that 'corruption" was the norm; that new advertising techniques and technologies-in those days mass newspapers, recordings, train travel-had created an insatiable demand for political spending that could only be curbed by spending limits; and that we faced a "crisis" of democracy. In response to such complaints, the federal government passed its first campaign finance law in 1907, banning direct corporate contributions to candidates. In 1943, this ban was extended to labor unions. Additionally, congress passed greater disclosure requirements in 1925. However, 4 these disclosure measures were so toothless as to be meaningless. For example, from its enactment in 1925 until its repeal in 1971, there was not a single prosecution under the Federal Corrupt Practices Act. Yet democracy survived, and this period of minimal regulation gave us Presidents Theodore and Franklin Roosevelt, Calvin Coolidge, Harry Truman, and Dwight Eisenhower, Congressional leaders such as Robert Taft, Hubert Humphrey, and Everett Dirksen, and serious debates over such issues as civil rights. For nearly two centuries, our democracy flourished despite, or perhaps even because of, the absence of any meaningful campaign finance regulation.

Not until the 1974 Amendments to the Federal Elections Campaign Act (FECA) did the federal government pass a campaign finance law with any serious enforcement mechanism. And it was also this law which, for the first time, gave us both contribution limits and, as a necessary accessory to those limits, the strange doctrines of independent expenditures and express advocacy. The 1974 Amendments threw of web of regulation, with an accompanying enforcement bureaucracy, the FEC, over American politics.

http://www.house.gov/judiciary/22225.htm

Do Election Laws that presume to exempt the commercial press, enhance the speech of the "commercial press" at the expense of every other American?

Buckley v. Valeo

It is argued, however, that the ancillary governmental interest in equalizing the relative ability of individuals and groups to influence the outcome of elections serves to justify the limitation on express advocacy of the election or defeat of candidates imposed by 608 (e) (1)'s expenditure ceiling. But the concept that government may restrict the speech of some elements of our society in [424 U.S. 1, 49]   order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed "to secure `the widest possible dissemination of information from diverse and antagonistic sources,'" and "`to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'" New York Times Co. v. Sullivan, supra, at 266, 269, quoting Associated Press v. United States, 326 U.S. 1, 20 (1945), and Roth v. United States, 354 U.S., at 484 . The First Amendment's protection against governmental abridgment of free expression cannot properly be made to depend on a person's financial ability to engage in public discussion. Cf. Eastern R. Conf. v. Noerr Motors, 365 U.S. 127, 139 (1961). 55   [424 U.S. 1, 50]

http://www.sfgate.com/cgi-bin/article.cgi?file=/examiner/archive/2000/07/09/NEWS6317.dtl

Anne 170  http://amendment10.tripod.com/Ann4.htm

Statue Article  http://amendment10.tripod.com/first.htm

Does any private business have lawful authority to decide some citizens will be exempt from state or federal election laws and that other citizens will not be exempt from them? Corporations are, for the purpose of law, a single person. But a corporation is not a living being. By what lawful authority does a corporate person presume to determine what rights [L]iving Citizens are entitled to have?

On August 4,1987 the Federal Communications Commission ended enforcement of its Fairness Doctrine.

General Electric enjoys an 'institutional press' exemption from election laws in the United States through its NBC network. General Electric has also invested in the television broadcasting

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